The batch of matters challenging the Aadhar Scheme has been pending for years with no fruitful result. The UPA has given way to the BJP government at the Centre, interim orders have been strengthened and weakened, while a reference to a larger bench for a decision on the right to privacy was made as long ago as on August 11, 2015. The Aadhar Act came into being in March 2016, only to be challenged again.
Now, finally, the issue of whether the right to privacy is a fundamental right or not under the Constitution is being heard by a nine-judge bench. In its judgment on August 11, 2015, the three-judge bench of the Supreme Court had clearly told the Centre as well as the Unique Identification Authority of India (UIDAI) that the Aadhar card could not be a mandatory requirement for obtaining any benefit due to a citizen.
The question whether the right to privacy is a fundamental right is of intrinsic importance beyond the Aadhar scheme. The right to privacy stands established as a Common Law right; should the Supreme Court decide it is covered under Part III (Fundamental Rights), the State becomes especially accountable for its protection.
The impact of the decision on private players, such as companies like Google and social media platforms, may also be significant. If privacy is a fundamental right, it can be claimed and asserted against the State by citizens. But can it also be asserted against private parties?
Assuming the Supreme Court decides the right to privacy is a fundamental right, it will be crucial for the Court to also decide whether it should, and can be, applied “horizontally”. Fundamental rights are vertically enforceable, that is, by the individual against actions of the State or public bodies. Horizontal application would mean that even the actions of private actors are tested on its cornerstone.
Over the years, courts have expanded the number of institutions within the definition of “State,” thereby allowing fundamental rights to be asserted horizontally. Today the Supreme Court has the opportunity to expand the scope and enforceability of the right to privacy. But it must also guide the obligations that arise on public and private players from this right, otherwise it would be difficult to assert it for several years to come.
The debate in India on privacy and data protection has come rather late, after the proliferation of the Internet, search engines, and social media. The nine-judge Bench observed yesterday, on July 20, that a significant amount of personal data has already been given by individuals to private players, and may be on the Internet or the “dark web”. While there is some amount of regulation under the Information Technology Act and restrictions on the use of “sensitive personal information,” India has yet to adopt a comprehensive Data Protection Code as has been done by the UK and European Union, for example.
The Supreme Court should urge the State to enact such legislation or fill the gap by detailing guidelines for data protection until such legislation is enacted.
Once the reference is decided, the validity of Aadhar will be adjudicated. Even with interim orders in place, the Aadhar scheme has been remarkably successful in allotting people Unique Identities. On December 5, 2013, UIDAI boasted it had issued 51 crore Aadhaar numbers. By January 6, 2015, the number stood at 73.4 Crore. Today, more than 1.154 billion Indians, that is, the vast majority of the population, have provided their biometric details and obtained an Aadhar Card.
In spite of publicly stating the voluntary nature of the scheme, the rate of enrolment is perhaps less remarkable than it is remarkably suspicious; particularly in view of the widespread reports of the denial of benefits to those without an Aadhar card.
In 2016, the government dropped all pretence of dissociation between the Aadhar card and its welfarist schemes by passing an Act titled, ‘The Aadhar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.’ The Act clearly links the provision of benefits to Aadhar enrolment and gives legislative backing to what the government has been doing for several years.
In that lies a deep contempt of, and for, the Supreme Court of India. In its refusal to constitute the appropriate bench and hear the matter for several years lies the Supreme Court’s tacit approval for the Aadhar scheme. In the time spent deciding whether the right to privacy is a fundamental right, the sustainability of Aadhar stands decided by the sheer strength of numbers. Today, over 90 percent of the country’s population have given their biometric details and hold Aadhar cards.
Nevertheless, this is a watershed moment, the ramifications of which will unfold over the years. Of course the Supreme Court could outlaw the entire Aadhar scheme and declare the Aadhar Act unconstitutional. The consequence of that would be far-reaching and politically radical – especially as Rs 9029.6 crores has already been spent and Aadhar is being widely used as proof of identity.
What the decision cannot do is retrospectively prevent the proliferation of Aadhar or monitor the manner in which it was promoted. It can hardly reverse the rampant sharing and misuse of personal data by private players that has already occurred, evidenced by targeted advertising and marketing. In light of this, the right to privacy may already be illusory. Even so, it is incumbent on the court to determine whether the illusion is necessary in order to lead a life of freedom and dignity.